In re Interest of Cody S., a child under 18 years of age, State of Nebraska v. Melissa C.

Melissa C. appeals from an order of the county court for Butler County, sitting as a juvenile court, terminating Melissa's parental rights to her son, Cody S. For the reasons set forth below, we affirm.

BACKGROUND

Cody was born on August 31, 2000, to Melissa and James S. Although Melissa and James were never married, they lived together for several years, with Melissa leaving the residence shortly after the State removed Cody from the couple's custody. On November 17, Melissa brought Cody into the Butler County Hospital emergency room because Cody was not breathing. Medical personnel then transferred Cody to a hospital in Lincoln. Medical tests revealed that Cody had suffered a subdural hematoma consistent with shaken baby syndrome. After Cody's diagnosis, the State placed him in protective custody, with Cody eventually being placed in the home of his maternal grandparents. The record shows that Cody has a strong bond with his maternal grandparents.

On August 8, 2001, the trial court adjudicated Cody as a child as described under Neb. Rev. Stat. § 43-247(3)(a) (Cum. Supp. 2002), pursuant to Melissa's admission and James' no contest plea. The State alleged that both Melissa and James were Cody's primary custodians at the time of his injuries and that both Melissa and James failed to protect Cody from his injuries.

On September 19, 2001, a dispositional hearing was held during which the State offered case plans and court reports for both Melissa and James. The court approved those plans at the hearing, and the primary objective set out in those plans was Cody's reunification with Melissa and James.

In a later case plan and court report entered into evidence at a review hearing on October 4, 2002, the State changed its recommendation from reunification to termination of Melissa's and James' parental rights, stating that although Melissa and James had completed the goals set out for them in their case plans, Cody's reunification with either Melissa or James could not occur, because the perpetrator of Cody's injuries had yet to be identified.

On January 15, 2003, the State filed a petition to terminate Melissa's and James' parental rights. The State cited numerous subsections of Neb. Rev. Stat. § 43-292 (Reissue 1998) in support of termination of parental rights, including subsection (6), which states that termination of parental rights may occur if "reasonable efforts to preserve and reunify the family if required under [Neb. Rev. Stat. §] 43-283.01 [(Reissue 1998)], under the direction of the court, have failed to correct the conditions leading to the determination" and subsection (8), which states that termination of parental rights may occur if "[t]he parent has inflicted upon the juvenile, by other than accidental means, serious bodily injury." The State also alleged that termination of Melissa's and James' parental rights is in Cody's best interests.

Trial on the State's petition was held on April 22, 2003. At trial, both Melissa and James testified that they had never shaken Cody, nor had they seen the other do so. The evidence at trial shows that on November 17, 2000, James left for work at approximately 5:30 a.m. Melissa testified that before James left, he fed Cody and placed him back in his crib to sleep. James testified that he did not have any contact with Cody that morning. Melissa testified that at 9 a.m., she got up to feed Cody and that after doing so, she put Cody back in his crib. Melissa testified that Cody then started coughing and that she noticed Cody had vomited on himself. Melissa testified that she bathed Cody and that when she took him out of the bathtub, Cody became stiff, started turning a different color, and was having difficulty breathing. Melissa testified that she then shook Cody gently in order to revive him and that after there was no response, she dialed the 911 emergency dispatch service.

Melissa testified that during her relationship with James, he was both physically and verbally abusive toward her. James denied this. The record shows that on a few occasions, Melissa called James' mother, asking her to come over to their house due to the fact that Melissa and James were fighting.

The State introduced into evidence the opinions of two medical doctors in regard to the cause of Cody's injuries on November 17, 2000. Dr. Abraham Scheer, who treated Cody at the Lincoln hospital, testified that Cody's injuries were consistent with shaken baby syndrome and that Cody showed evidence of prior traumas in addition to his recent injuries. Scheer did not state exactly when Cody's injuries occurred.

Dr. Michael Moran testified that on November 17, 2000, Cody suffered a severe brain injury "which caused him to go into shock and almost die," consistent with being shaken. Moran testified that "[w]hen these type of symptoms occur they are immediate and are within a very short time frame of the time of injury." Moran further opined, "Cody . . . was a victim of Shaken Baby Syndrome. The timing is probably sometime shortly before [Melissa] describes the events which led to calling the [emergency medical technicians]."

The State also entered into evidence the deposition of Darcy Thege, a protection and safety worker for the Nebraska Department of Health and Human Services (DHHS). Thege testified that the State moved forward with termination of parental rights because reunification between Cody and either Melissa or James is not recommended. Thege testified that DHHS cannot guarantee Cody's safety, given that DHHS does not know who caused Cody's injuries.

Dr. Thomas Gilligan performed bonding assessments for Melissa and Cody and for James and Cody. The results of some of those assessments were received into evidence at trial. In a report offered at trial and included in the bill of exceptions, Gilligan stated that both Melissa and James have a "clear and significant attachment" to Cody. After trial, Melissa, with the trial court's approval, entered into evidence a subsequent letter, dated April 29, 2003, from Gilligan to her counsel. In that letter, Gilligan speaks of Melissa's relationship with Cody and states, "It would not be in Cody's best interest to terminate this relationship without clear and significant evidence of severe danger or harm to Cody." That letter is not in the bill of exceptions before us, but it is in the supplemental transcript.

On September 8, 2003, the trial court filed an order terminating Melissa's parental rights and dismissing the State's petition against James. The trial court found that the State had established through clear and convincing evidence that Melissa had failed to correct the conditions leading to Cody's adjudication and that Melissa inflicted upon Cody serious bodily injury by other than accidental means. The trial court also found that it is in Cody's best interests that Melissa's parental rights be terminated. Melissa appeals.

ASSIGNMENTS OF ERROR

On appeal, Melissa argues that the juvenile court was precluded from finding that she inflicted serious injury upon Cody, under the doctrines of res judicata and collateral estoppel. Melissa also argues that the juvenile court erred in finding (1) that the State proved by clear and convincing evidence that she had failed to correct the conditions leading to Cody's adjudication, (2) that the State proved by clear and convincing evidence that she inflicted upon Cody serious bodily injury by other than accidental means, (3) that the State proved by clear and convincing evidence that it is in Cody's best interests that her parental rights be terminated, and (4) that the State's petition should be dismissed against James.

STANDARD OF REVIEW

Juvenile cases are reviewed de novo on the record, and an appellate court is required to reach a conclusion independent of the juvenile court's findings; however, when the evidence is in conflict, the appellate court will consider and give weight to the fact that the lower court observed the witnesses and accepted one version of the facts over the other. In re Interest of Joshua R. et al., 265 Neb. 374, 657 N.W.2d 209 (2003); In re Interest of Lisa W. & Samantha W., 258 Neb. 914, 606 N.W.2d 804 (2000); In re Interest of Janet J., 12 Neb. App. 42, 666 N.W.2d 741 (2003), disapproved on other grounds, In re Interest of Jac'Quez N., 266 Neb. 782, 669 N.W.2d 429 (2003).

ANALYSIS
Res Judicata and Collateral Estoppel.

On appeal, Melissa argues that the juvenile court was precluded from finding that she inflicted serious injury upon Cody, under the doctrines of res judicata and collateral estoppel. Specifically, Melissa contends that once she admitted at the adjudication hearing that she had failed to protect Cody, the State was precluded from making a further finding at the termination hearing that Melissa injured Cody.

We first note that Melissa did not raise this issue before the juvenile court. In the absence of plain error, when an issue is raised for the first time in an appellate court, it will be disregarded inasmuch as a lower court cannot commit error in resolving an issue never presented and submitted to it for disposition. In re Interest of Marcus W. et al., 11 Neb. App. 313, 649 N.W.2d 899 (2002). Plain error exists where there is error, plainly evident from the record but not complained of at trial, which prejudicially affects a substantial right of a litigant and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process. Id.

There is no plain error on this record. The doctrine of res judicata bars the relitigation of a matter that has been directly addressed or necessarily included in a former adjudication. Moulton v. Board of Zoning Appeals, 251 Neb. 95, 555 N.W.2d 39 (1996). The question of who harmed Cody was neither directly addressed nor necessarily included in the adjudication.

Similarly, collateral estoppel applies when an issue of ultimate fact has been determined by a final judgment, and that issue cannot again be litigated between the same parties in a future lawsuit. In re Interest of Marcus W. et al., supra, citing Pipe & Piling Supplies v. Betterman & Katelman, 8 Neb. App. 475, 596 N.W.2d 24 (1999). There are four conditions that must exist for the doctrine of collateral estoppel to apply: (1) The identical issue was decided in a prior action, (2) there was a judgment on the merits which was final, (3) the party against whom the rule is applied was a party or in privity with a party to the prior action, and (4) there was an opportunity to fully and fairly litigate the issue in the prior action. In re Interest of Marcus W. et al., supra. In the instant case, the issue of "ultimate fact," that is, the question of who harmed Cody, was not litigated at the adjudication hearing. Although Melissa admitted that she failed to protect Cody, the question of who inflicted Cody's injuries was not decided and was left for the court to determine at the termination hearing. For these reasons, there is no plain error in the court's finding, at the termination hearing, that Melissa was the one who injured Cody.

Termination of Melissa's Parental Rights and Dismissal of James.

Melissa also argues the juvenile court erred in finding the State proved by clear and convincing evidence that she had failed to correct the conditions leading to Cody's adjudication and that she inflicted upon Cody serious bodily injury by other than accidental means. Melissa contends that there was "as much if not more evidence against [James] indicating that he was the perpetrator of the assault against Cody as [Melissa]." Brief for appellant at 30.

Before parental rights may be terminated, the evidence must clearly and convincingly establish the existence of one or more of the statutory grounds permitting termination and that termination is in the juvenile's best interests. In re Interest of Joshua R. et al., 265 Neb. 374, 657 N.W.2d 209 (2003); In re Interest of Lisa W. & Samantha W., 258 Neb. 914, 606 N.W.2d 804 (2000).

Section 43-292 requires a finding of only one of the enumerated grounds to terminate parental rights. See In re Interest of Brittany S., 12 Neb. App. 208, 670 N.W.2d 465 (2003). Because we find that § 43-292(8) was proved by clear and convincing evidence, we need not consider Melissa's assertions concerning § 43-292(6).

In its order, the trial court found that Melissa was the one who injured Cody. Specifically, the trial court stated:

The medical evidence . . . concludes that the symptoms demonstrated by [Cody] would have presented within a few minutes of the injury. The evidence is clear and convincing that [Melissa] was the only person with [Cody] when the injury was inflicted . . . . The medical evidence is undisputed that the injury was life threatening and the long term prognosis is unclear. There was some medical evidence that [Cody] may have suffered a similar, although less serious, injury some weeks prior to November 17, 2003, but that injury is not part of the pleadings

.

The court further stated, "There is no evidence that [James] would have been the source of injury to [Cody] or that he would have had reason to know that [Cody] had been injured in the past."

It is clear that in making its determination that Melissa injured Cody, the trial court relied on Moran's expert opinion. At trial, Moran testified that on November 17, 2000, Cody suffered a severe brain injury "which caused him to go into shock and almost die," consistent with being shaken. Moran further testified that "[w]hen these type of symptoms occur they are immediate and are within a very short time frame of the time of injury." Moran further opined, "Cody . . . was a victim of Shaken Baby Syndrome. The timing is probably sometime shortly before [Melissa] describes the events which led to calling the [emergency medical technicians]."

A fact finder is free to reject the opinion of experts and to choose which witness to believe. Eledge v. Farmers Mut. Home Ins., 6 Neb. App. 140, 571 N.W.2d 105 (1997). On this record, the court had sufficient evidence before it to find that Melissa, not James, injured Cody, and we will not overturn that finding.

Thus, we conclude the trial court did not err in finding that the evidence showed by clear and convincing evidence that Melissa inflicted upon Cody serious bodily injury by other than accidental means. Additionally, the trial court did not err in finding that there was insufficient evidence to show that James injured Cody or had reason to know that Cody had been injured in the past.

Best Interests.

On appeal, Melissa contends that the court erred in finding that it was in Cody's best interests that her parental rights be terminated. At trial, Gilligan opined that there is a "clear and significant attachment" between Cody and Melissa. After trial, Melissa entered into evidence another report authored by Gilligan in which Gilligan stated that it would not be in Cody's best interests to terminate Melissa's parental rights "without clear and significant evidence of severe danger or harm to Cody." This latter evidence was not placed into the bill of exceptions, but, rather, was made part of the supplemental transcript.

We cannot consider this evidence in the supplemental transcript, because a bill of exceptions is the only vehicle for bringing evidence before an appellate court; evidence which is not made a part of the bill of exceptions may not be considered. In re Interest of Marcus W. et al., 11 Neb. App. 313, 649 N.W.2d 899 (2002).

Without that evidence, we turn to other evidence in this record that establishes that it is Cody's best interests for Melissa's parental rights to be terminated. The record shows that Cody's injuries as a result of being shaken were very serious, even life threatening. Moran testified that on November 17, 2000, Cody suffered a severe brain injury "which caused him to go into shock and almost die." Moran also testified that "Cody's prognosis, although his recent exams have been good, is poor."

Thege testified that given Cody's serious injuries, Cody could not be placed back with either Melissa or James until DHHS found out which parent inflicted Cody's injuries and DHHS provided that parent a chance for rehabilitation. Thege testified that otherwise, DHHS could not ensure Cody's safety. Thege also testified that based upon her experience, education, training, and contact with the parties, it would be in Cody's best interests that both Melissa's and James' parental rights be terminated if the perpetrator of Cody's injuries was not identified.

Given the court's finding that Melissa inflicted Cody's injuries, the seriousness of Cody's injuries, and the fact that Melissa cannot be rehabilitated because she failed to acknowledge that she caused Cody's injuries, it is clear from this record that it is in Cody's best interests that Melissa's parental rights to Cody be terminated.

This court has held that a parent's rights may not be terminated on the basis of that parent's refusal to waive his or her protections against self-incrimination, but may be terminated based upon that parent's failure to comply with an order to obtain meaningful therapy or rehabilitation, perhaps in part because that parent's failure to acknowledge past wrongdoing inhibits meaningful therapy. In re Interest of Clifford M. et al., 6 Neb. App. 754, 577 N.W.2d 547 (1998). Clearly, in the instant case, without meaningful therapy, Melissa constitutes a serious threat to Cody's safety, and without such therapy, it is in Cody's best interests that Melissa's parental rights be terminated.

CONCLUSION

After reviewing the record, we conclude the juvenile court did not err in finding that the State had proved by clear and convincing evidence that Melissa, not James, inflicted upon Cody serious bodily injury by other than accidental means or in finding that it is in Cody's best interests that Melissa's parental rights be terminated. Thus, the court did not err in terminating Melissa's parental rights and in dismissing the State's petition against James.

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Click the case caption above for the full text
of the Court's opinion.

Affirmed in favor of Defendent.

Unavailable

Dr. Abraham Scheer, Dr. Michael Moran, medical doctors from Lincoln.

Darcy Thege, a protection and safety worker for the Nebraska Department of Health and Human Services (DHHS).

Dr. Thomas Gilligan.

Reported by L. Hargraves